State Of J&K vs Abdul Kareem
2021 Latest Caselaw 1204 j&K

                                                                          Sr. No. 81



          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU

Case: CrlA(AS) No. 51 of 2021

State of J&K                                             .....Appellant/Petitioner(s)

                                Through :- Ms. Palvi Sharma, Advocate vice
                                           Mr. Bhanu Jasrotia, GA
                          v/s
Abdul Kareem                                                      .....Respondent(s)

                                Through :- Mr. Ayushman Kotwal, Advocate

Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                 JUDGMENT

1. The present appeal has been filed by the appellant-the then State against

the judgment dated 30.12.2015 passed by the learned Principal Sessions Judge,

Rajouri (hereinafter to be referred as the trial Court) by virtue of which the

accused-respondent, namely, Abdul Kareem has been acquitted for commission

of offence under Section 435 RPC in FIR No. 122/2011 of Police Station,

Darhal.

2. The judgment impugned has been challenged on the ground that the

learned trial Court has not rightly appreciated the evidence and the prosecution

had proved the case against the accused-respondent by leading cogent evidence

but despite that the respondent was acquitted.

3. The facts necessary for the disposal of the appeal are that on 10.12.2011,

complainant, Nazir Hussain S/o Misri, Caste Gujjar R/o Nadian Tehsil Darhal

District Rajouri (hereinafter to be referred as 'complainant') lodged a written

report with Police Station, Darhal alleging therein that in the intervening night

of 27/28th of November, 2011, some persons had set his 200 bundles of

dumped grass on fire, reducing them to ashes. It was further stated that

probably the said offence had been committed by the respondent, namely,

Abdul Kareem S/o Raj Mohd R/o Nadian, thereby causing loss to the tune of

Rs.1.00 lac. Pursuant to this, FIR No. 122/2011 under section 435 RPC was

registered with Police Station, Darhal and after completion of the investigation,

the challan for commission of offence under Section 435 RPC was filed against

the accused/respondent. The charges were framed against the respondent for

commission of offence under Section 435 RPC and thereafter, the prosecution

was directed to lead evidence. The prosecution has produced as many as eight

witnesses i.e. Mushtaq Hussain, Mohd. Gafoor, Fazal Hussain, Barket Hussain,

Nazir Hussain, Ghulam Nabi (ASI), Nissar Hussain and Mohd. Rafiq Khan

(S.I).

4. Ms. Palvi Sharma, learned counsel appearing for the appellant-State

vehemently submits that the complainant has categorically stated that the

respondent in the intervening night of 26/27th November, 2011 set the grass of

the complainant on fire and despite there being positive evidence, the learned

trial court has wrongly acquitted the respondent.

5. Per contra, learned counsel appearing for the accused-respondent

submits that the name of the respondent was never mentioned in the application

filed by the complainant, pursuant to which, the FIR was lodged and that there

was delay in lodging the FIR and the learned trial court has rightly appreciated

the evidence.

6. Heard learned counsel for the parties and perused the record.

7. Before appreciating the contention raised by the parties, it would be

appropriate to have brief resume of the evidence.

8. PW-Nazir Hussain-Complainant stated that in the intervening night of

27/28th of November, 2011 he came out of his house and saw the respondent-

accused setting the grass on fire that was already dumped there. He identified

the accused in the light of the fire but the accused run away. Thereafter 30/40

people came on spot. As the accused had enmity with him so he set his grass

on fire. Thereafter, the accused was also called in the Baradhari Panchyat but

he did not participate in the same and thereafter he lodged an application

marked as EXTP- 1/1 with the Police Station, Darhal. Pursuant to which, FIR

was lodged. He has proved the contents of application as also the seizure memo

of the ashes. He further submitted that he suffered a loss to the tune of Rs. 1.50

lacs. In cross examination, he stated that FIR was lodged with the Police

Station after 10/12 days of the occurrence. The accused-respondent set his

grass on fire at the instigation of Master Nissar, Barket Hussain and Fazal

Hussain. However, he registered the FIR only against the accused-respondent.

9. PW-Mushtaq Hussain stated that Misri and Nazir Hussain are known

to him. Last year, he had seen the grass of the complainant on fire. He along

with other people too had gone on spot. He extinguished the fire. The said

witness was declared hostile by the prosecution and during cross examination,

nothing incriminating against the respondent could be elicited by the APP.

10. PW Mohd Gafoor stated that the accused is known to him and in the

intervening night of 27/28th of November, 2011, the grass of the complainant

was set on fire by the accused. During cross examination, he admitted that he is

nephew of the complainant and simultaneously also pleaded his ignorance as to

who had set the grass of the complainant on fire. He further deposed that he

had made his statement that the respondent had set the grass on fire as per the

asking of the complainant.

11. PW Fazal Hussain was also declared hostile and during cross-

examination, no incriminating material could be elicited against the

respondent.

12. PW-Barket Hussain stated that two years ago in the intervening night

of 27/28th of November, 2011, he had gone to his in-laws' house and during the

night when he came out of in-laws' house, there was light outside. He had seen

the accused while standing near the grass and in the meanwhile the dumped

grass caught the fire. He further stated that the accused had set the said grass on

fire. In cross examination, he stated that the complainant was his relative. The

place occurrence is one and a half km away from his house, however, his in-

laws' house is in front of house of the complainant. He denied that he was a

history sheeter in the Police Station, Darhal. On raising hue and cry, Nazir

Hussain had also come there. The houses of Master Lal Hussain, Haji Fazal

Hussain, Ghulam Qadir, Master Barket and Gulzar etc. are near to the place of

occurrence. On raising hue and cry, all the above named people had come on

spot.

13. PW-Ghulam Nabi stated that he had presented the challan only in the

Court and the investigation was conducted by another Investigating Officer.

14. PW Nissar Hussain stated that in the year 2011, he was posted at Police

Station Darhal. He had partly investigated the instant FIR. During the course of

investigation, he visited the spot and prepared the site plan marked as Ext-P8/1.

He also proved the seizure memo with regard to ash that stood already

exhibited as Ext-Pl/2. He recorded the statements of the witnesses under

Section 161 Cr.P.C and after his transfer the investigation was conducted by

another I.O. During cross examination, he stated that the house of the accused

is one and a half km away from the place of occurrence. He pleaded ignorance

as to whether any litigation was going on between the complainant and the

accused or not. He admitted that the FIR was registered after 13/14 days of the

occurrence.

15. PW Mohd Rafiq stated that in the year 2011, he was posted as SHO

Police Station, Darhal. The case FIR No. 122/2011 marked as EXTP-1/1 was

registered by him upon the application of Nazir Hussain. After investigation,

the case was handed over to him and on perusal of the file, the offence under

Section 435 RFC was proved against the accused. During cross examination,

he admitted that the case was registered on 10.12.2011, however, the copy of

the FIR was sent to the court on 12.12.2011.

16. This is the only evidence that was led by the appellant before the trial

Court. After recording the statement of the respondent under Section 342 of

Cr.P.C., the learned trial Court acquitted the respondent as the respondent did

not choose to lead the evidence in his defence. The only issue which the

prosecution was required to prove was whether in the intervening night of

27/28th of November, 2011, the accused had put the grass of the complainant

on fire or not.

17. A perusal of the statement of the complainant reveals that he lodged the

FIR after 10/12 days of occurrence and moreso in the EXT-P1, pursuant to

which, the FIR was registered, it was only stated by the complainant that

probably the respondent might have set the grass on fire, meaning thereby that

the complainant himself was not sure as to whether the respondent had put the

grass on fire or not.

18. The another witness examined by the prosecution, who to some extent

has supported the prosecution is PW-Barkat Hussain, who is not only a relative

of the complainant but also a chance witness. No doubt the testimony of the

related witness is not required to be rejected only because of the reason that he

is a related nonetheless it is the mandate of law that the testimony of the related

witness is to be considered with due care and caution. It is required to be noted

that the complainant had nowhere stated that Barkat Hussain was present on

spot.

19. Taking into consideration that there was a delay in lodging FIR, coupled

with the fact that the prosecution has not been able to lead cogent evidence to

prove that it was the respondent who put grass of the complainant on fire and

further that no independent witness has been examined by the prosecution to

prove the charge against the respondent, this is not a fit case that requires any

indulgence.

20. Learned counsel for the appellant has not been able to convince this

Court that the opinion formed by the learned trial court is perverse and contrary

to the facts led by the prosecution. No doubt the powers of the appellate court

in appeal against acquittal are no less than in an appeal against conviction. But

where on the basis of evidence on record two views are reasonably possible,

the appellate court cannot substitute its view in the place of that of the trial

court. It is only when the approach of the trial court in acquitting an accused is

found to be clearly erroneous in its consideration of evidence on record and in

deducing conclusion there from, the appellate court can interfere with the order

of acquittal.

21. For all what has been discussed above, the trial court has rightly

acquitted the respondent. The learned trial Court, while appreciating the

evidence, has rightly come to the conclusion that the respondent is required to

be acquitted. I have also perused the judgment passed by the trial court and I

find that the finding recorded by the trial court can neither be termed as

perverse, contrary to the evidence nor erroneous, therefore, no case for any

indulgence is made out. In the result, this appeal, being without any merit, is

hereby dismissed.

(RAJNESH OSWAL) JUDGE JAMMU 29.09.2021 Paramjeet

Whether the order is speaking : Yes / No Whether the order is reportable : Yes / No